Like rest of the feds, the IRS can get your e-mails with no problem

IRS says we "do not have a reasonable expectation of privacy" for our inboxes.

If you’ve been reading Ars for awhile, you know how trivially easy it is for government agencies to access your e-mail. Thankfully, there’s been a modest amount of pressure in Washington, DC to change that.

The 1986-era Electronic Communications Privacy Act (ECPA) requires a warrant to obtain newly sent e-mail before it's been opened by the recipient. But once an e-mail has been opened, or once it's been sitting in the recipient's e-mail box for 180 days, a lower standard applies. (Of course in practice, that's not how anyone's e-mail works anymore.)

The latest iteration of possible reforms came last month when a new bill was re-introduced in the House of Representatives. The Obama Administration has indicated in a Congressional hearing that it would support changes to ditch that time-dependency.

So it probably shouldn’t come as a surprise that the Internal Revenue Service’s Criminal Tax Division, as part of its job of tracking down and prosecuting tax dodgers, believes it has the authority to read your e-mails without obtaining a warrant under ECPA.

According to newly published documents obtained through a Freedom of Information Act (FOIA) request by the American Civil Liberties Union (ACLU), the IRS seems to indicate that it’s definitely following the letter of the much-maligned federal law.

As the ACLU wrote on Wednesday:

A 2009 “Search Warrant Handbook” from the IRS Criminal Tax Division’s Office of Chief Counsel baldly asserts that “the Fourth Amendment does not protect communications held in electronic storage, such as e-mail messages stored on a server, because Internet users do not have a reasonable expectation of privacy in such communications.” Again in 2010, a presentation by the IRS Office of Chief Counsel asserts that the “[Fourth] Amendment Does Not Protect E-mails Stored on Server” and there is “No Privacy Expectation” in those e-mails.

Other older documents corroborate that the IRS did not get warrants across the board. For example, the 2009 edition of the Internal Revenue Manual (the official compilation of IRS policies and procedures) explains that “the government may obtain the contents of electronic communication that has been in storage for more than 180 days” without a warrant.

The ACLU notes that the IRS’ policies have not changed even in the wake of Warshak. The famous 2010 Sixth Circuit decision found that federal authorities do need a warrant before they can access e-mail.

Promoted Comments

If they're required to get a search warrant to read my postal mail that is stored in my P.O. Box, why in the heck would they not be required to get a search warrant to read my e-mail which is stored in a similar manner electronically? Both require a key to access and are not physically stored on my property, no?

If they're required to get a search warrant to read my postal mail that is stored in my P.O. Box, why in the heck would they not be required to get a search warrant to read my e-mail which is stored in a similar manner electronically? Both require a key to access and are not physically stored on my property, no?

If they're required to get a search warrant to read my postal mail that is stored in my P.O. Box, why in the heck would they not be required to get a search warrant to read my e-mail which is stored in a similar manner electronically? Both require a key to access and are not physically stored on my property, no?

And as I understand it, it is very hard to actually get a warrant for physical mail.

If they're required to get a search warrant to read my postal mail that is stored in my P.O. Box, why in the heck would they not be required to get a search warrant to read my e-mail which is stored in a similar manner electronically? Both require a key to access and are not physically stored on my property, no?

Are they required to do that, though? I always understood that the Postal Service (as well as UPS and FedEx) can inspect any mail that it wants to, which is why my packages sometimes arrive clearly opened and searched. Is there some difference between parcel mail and letters? Genuinely curious.

No one can open and read my physical mail. Only legally-sanctioned entities with a warrant/subpoena can do so. Why doesn't this standard apply to e-mail? Just because it's digital doesn't make it any less "mail."

If they're required to get a search warrant to read my postal mail that is stored in my P.O. Box, why in the heck would they not be required to get a search warrant to read my e-mail which is stored in a similar manner electronically? Both require a key to access and are not physically stored on my property, no?

And as I understand it, it is very hard to actually get a warrant for physical mail.

That's because Scalia is THE understanderer of the law, which protects your Papers and not voltage levels.

If they're required to get a search warrant to read my postal mail that is stored in my P.O. Box, why in the heck would they not be required to get a search warrant to read my e-mail which is stored in a similar manner electronically? Both require a key to access and are not physically stored on my property, no?

Are they required to do that, though? I always understood that the Postal Service (as well as UPS and FedEx) can inspect any mail that it wants to, which is why my packages sometimes arrive clearly opened and searched. Is there some difference between parcel mail and letters? Genuinely curious.

Priority and Express are sealed against postal inspection. Some classes, such as media mail which carry special rates for specific kinds of goods are often inspected to make sure they fall within those categories.

If they're required to get a search warrant to read my postal mail that is stored in my P.O. Box, why in the heck would they not be required to get a search warrant to read my e-mail which is stored in a similar manner electronically? Both require a key to access and are not physically stored on my property, no?

And as I understand it, it is very hard to actually get a warrant for physical mail.

That's because Scalia is THE understanderer of the law, which protects your Papers and not voltage levels.

But isn't ink & paper just nuclei sharing trapped electrons in some sort of geometric arrangement? How convenient to reduce things to their constituents in one case and not in the other.

It's somewhat of a scare tactic because the government isn't nearly as big and bad as they'd like you to think they are... I think that email and snail mail are indistinguishable in terms of search and seizure--a warrant requirement for one automatically is a warrant requirement for the other. Email is not public, and email in-boxes are directly analogous to snail-mail mailboxes. It's a Federal crime to tamper with the US Mail; it should be the same for US Email.

There are just a host of things wrong if truly the IRS believes it has the right to hack into people's private in-boxes and surreptitiously read their email. How about violating the Constitutional protection for self-incrimination, for starters? If I am a tax cheat and I am loony enough to keep documents around where I'm telling someone else that I am a tax cheat, and detailing my "methods", should the IRS hack into my computer and steal those emails and then use them as evidence against me--then the IRS is using me to incriminate myself. Although I might be raving stupid enough, gibbering really, to write all of this down in an email, clearly there could be no assumed intent on my part to wave my protections against self-incrimination.

This is just more of the old-fogey bias in Congress about "all things computer." Most of them don't understand it so they trivialize and demonize it whenever possible. New blood is needed there to get things into perspective. For all intents and purposes, email *is* the US mail, today.

It's somewhat of a scare tactic because the government isn't nearly as big and bad as they'd like you to think they are... I think that email and snail mail are indistinguishable in terms of search and seizure--a warrant requirement for one automatically is a warrant requirement for the other.

You seem to be confusing the word "are" with the correct term "should be". I agree that they should be the same. In law and practice, they are worlds apart.

So if they are saying there is "no expectation of privacy with email" shouldn't we the public get a published list of all government emails as soon as they are sent? After all, our tax dollars pay for those emails and infrastructure and if they aren't private we should get them all dumped without a FOIA request.

It's somewhat of a scare tactic because the government isn't nearly as big and bad as they'd like you to think they are... I think that email and snail mail are indistinguishable in terms of search and seizure--a warrant requirement for one automatically is a warrant requirement for the other.

You seem to be confusing the word "are" with the correct term "should be". I agree that they should be the same. In law and practice, they are worlds apart.

Is there any federal department that doesn't do 'lawyer opinion shopping', where they ask for a written opinion about some issue, and if the lawyer doesn't give the desired result, they demote that lawyer, then go to the next one, and repeat until they get the 'opinion' they want, and proceed to do whatever they want based on that 'legal opinion'?

What they should be required to do, is to actually validate the 'opinion' in a real court before acting on it.

No one can open and read my physical mail. Only legally-sanctioned entities with a warrant/subpoena can do so. Why doesn't this standard apply to e-mail? Just because it's digital doesn't make it any less "mail."

What is so difficult to understand about this concept?

Do you shred your mail when you're done with it, incidentally?

Because no search warrant is required to search garbage stored outside the home, as there is no reasonable expectation of privacy for your garbage.

This is the logic of the 180 day expiration of expectation of privacy/remote server storage.

Not that changing the law to require a search warrant will change anything for people who are actually criminally delinquent on their taxes, or engaged in other sorts of criminal behavior which they transmit evidence of digitally.

The IRS doesn't have anything to do with determining what is and is not a reasonable expectation of privacy. Unless there's a court case somewhere saying that, then this is just shit advice -- an objective misstatement of law -- that will get evidence suppressed in the favor of tax cheats.

The IRS doesn't have anything to do with determining what is and is not a reasonable expectation of privacy. Unless there's a court case somewhere saying that, then this is just shit advice -- an objective misstatement of law -- that will get evidence suppressed in the favor of tax cheats.

This is probably the biggest issue. The IRS isn't just randomly searching emails. - it's because they are investigating a likely cheater - then they conduct this investigation where the evidence just gets thrown out.

Same thing with local police bungling cases - they do stupid stuff because "they're the police" and the guilty dangerous people get off.

The gun law debate is a red herring. *This* is where your rights are being taken away, ladies and gentlemen.

On that particular subject - as long as they don't start screwing with private transactions, I could care less. I've never bought a new gun or bought anything except ammo at a gun shop. I however own like 200 guns purchased from private sellers.

If they're required to get a search warrant to read my postal mail that is stored in my P.O. Box, why in the heck would they not be required to get a search warrant to read my e-mail which is stored in a similar manner electronically? Both require a key to access and are not physically stored on my property, no?

Are they required to do that, though? I always understood that the Postal Service (as well as UPS and FedEx) can inspect any mail that it wants to, which is why my packages sometimes arrive clearly opened and searched. Is there some difference between parcel mail and letters? Genuinely curious.

The USPS CANNOT open your mail without a warrant. The UPS and FedEX can open your package for ANY reason they want because when you hand over the item to them its actually classified as their property for the duration of its travel.

Which is why drug dealers only ship USPS. Whether its the 1/2-day vs econ rate, that debate centers on that the less time its in the system, the better and that every package isn't scanned. Shipping small letters with lots of bulk mail is easier to slip through scanners than a giant crate which is sure to see a scanner. Also this is why if you ever get a strange call from the USPS asking you to come pick up your package by hand or if its hand delivered with more than one mailman, there is a good chance you are about to be part of a sting OP with the popo and/or fed.

Also all your email's are already on file with at least the NSA. Why ask for that data, when ISPs already sent a split line out directly to the fed.

This is bull. Do I need to use a login and password to retrieve my emails? Yes! Then I have a reasonable expectation of privacy, because I expect that nobody else can read my email without my password.

And my mail paper cannot be opened without a warrant The government need to get with the times. My email is the same to me as my paper mail - and often contains private information meant for my personal viewing only. They should not have access to my email any more than they have access to my paper mail, without a warrant plain and simple.

If they're required to get a search warrant to read my postal mail that is stored in my P.O. Box, why in the heck would they not be required to get a search warrant to read my e-mail which is stored in a similar manner electronically? Both require a key to access and are not physically stored on my property, no?

I agree completely. It is unclear to me why we have to redefine laws just cause something is digital as opposed to physical when it represents the same thing. Just because it is digital and easier to scan/monitor/collect doesn't mean it should be allowed. The other laws were there for a reason. I think this Government is not happy with the limitations imposed on them in the physical world and are using this opportunity as we transition into a more digital world to take whatever power back they can. Scary stuff. Now tell me about your "Land of the Free" again?

It's somewhat of a scare tactic because the government isn't nearly as big and bad as they'd like you to think they are... I think that email and snail mail are indistinguishable in terms of search and seizure--a warrant requirement for one automatically is a warrant requirement for the other. Email is not public, and email in-boxes are directly analogous to snail-mail mailboxes. It's a Federal crime to tamper with the US Mail; it should be the same for US Email.

I seem to remember that technically the mailbox your mail-person uses is federal property. That's why vandalism of said property is a federal crime. Do people want the same to be true of their virtual mailbox?

Edit: I should elaborate. Do you want a mail box run by the government, with all the possible problems that could cause?

The IRS's statement appears to be an expansion of the warrantless rule. The "inbox" apparently no longer applies as they clearly indicate that they feel e-mail stored "on a server" is free from a reasonable expectation of privacy.

I'd like to meet the people that composed this opinion to see what they really think. Seriously, who honestly thinks my password-protected account, holding thousands of messages, stored in an organized manner (not sub-folders of my "inbox"), isn't something I expect to be private?

The gun law debate is a red herring. *This* is where your rights are being taken away, ladies and gentlemen.

The gun law debate is just one facet of the whole rights issue. Why is it ok for the government to overreach in one aspect and yet not ok in another? First amendment, second amendment, fourth amendment, tenth amendment, whatever.

You want to read my email (or anyone else's for that matter), do it legally and get a search warrant.